Nabatu Pty Ltd v Kempsey Shire Council [2006] NSWLEC 254

Nabatu Pty Ltd v Kempsey Shire Council [2006] NSWLEC 254

The Court was not persuaded that the former church had such heritage significance as to warrant refusal of consent. It was not a listed heritage item, was not within an existing or proposed conservation area, was not rare, had no special architectural or scientific significance and no special social significance sufficient to justify refusal. The relocation would be sensitive to its heritage significance and likely to secure its maintenance, while its future on the existing site was uncertain; the loss to Sherwood village did not carry sufficient weight to refuse the applications.

Jurisdiction
Australia
Judgment Date
31 March 2006
Procedural Posture
Development Application Appeals / Ex Tempore Judgment After Hearing
Outcome
Appeals upheld; development consent granted for removal and existing consent amended to permit relocation and reuse of the former church building.
Legal Topics
['development Consent' 'removal and Relocation of Building' 'demolition' 'heritage Significance' 'adaptive Reuse' 'tourism Impact']
['planning and Environment' 'heritage Conservation'] ['development Consent' 'removal and Relocation of Building' 'demolition' 'heritage Significance' 'adaptive Reuse' 'tourism Impact']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Development Application Appeals / Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ['Is the building of local historical significance at Sherwood?' 'Would retention of the building form a key part of the heritage fabric of Sherwood village?' 'Will retention of the building enhance tourism for the benefit of the local community?' 'Will removal of the building destroy its heritage value?']

Ratio Decidendi

The Court was not persuaded that the former church had such heritage significance as to warrant refusal of consent. It was not a listed heritage item, was not within an existing or proposed conservation area, was not rare, had no special architectural or scientific significance and no special social significance sufficient to justify refusal. The relocation would be sensitive to its heritage significance and likely to secure its maintenance, while its future on the existing site was uncertain; the loss to Sherwood village did not carry sufficient weight to refuse the applications.

Court Disposition

Appeals upheld; development consent granted for removal and existing consent amended to permit relocation and reuse of the former church building.

Orders

  • ['In matter No. 11378 of 2005, the appeal is upheld.' 'Development application number T6-05-480 for the removal of the existing building from Lot 1 DP 919686 being land in Sherwood Road, Sherwood is determined by the granting of development consent subject to the conditions in annexure A hereto.' 'Exhibit 8 is...